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Charges under California's looting law could be filed in situations like the following:

After a major flood shuts down a city, two men travel to the deserted business district and break into a clothing store. Their intent is to steal all the dry merchandise as soon as they can get a car into the area.

During a riot that results from an appalling case of police misconduct, some people break the windows of an electronics store. A woman goes inside and takes several iPods.

People are evacuating a small town because of a wildfire that has caused the mayor to declare a state of emergency. Before leaving, a man stops by his local convenient store and finds that there is no one at the register. So he takes several 12-packs of beer without paying.

Penalties

The penalties for looting under California Penal Code 463 PC depend on the specific form of the crime one is alleged to have committed.

A “state of emergency” or “local emergency” means conditions which, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment and facilities of any single county or city—and thus require the combined forces of several regions to combat.8

Under California looting law, a state of emergency can be declared by the Governor or a local governing body.

States of emergency may be declared by the Governor—and, once declared, can only be terminated by another proclamation of the Governor.9

Local emergencies, on the other hand, can be declared by the governing body of a city, county, or city and county—and last until terminated by that body.10

In practice, states of emergency and local emergencies are usually declared in the following kinds of situations:

Earthquakes;

Fires;

Floods;

Riots; and/or

Severe weather amounting to a natural disaster.

1.1. Looting by burglary

One way to commit the crime of looting is to commit a second-degree burglary during a state of emergency or local emergency.11

The legal definition of a second-degree burglary is:

Entering any structure that is not an inhabited dwelling (such as a store, warehouse, etc.);

With the intent to commit either a theft (grand or petty) or any felony once inside.12

Example: The city where Doug lives experiences a major earthquake. The Governor declares a state of emergency in that city.

A liquor store near Doug's house is badly damaged and has been closed since the earthquake. One night Doug walk to the store and finds that the locks are broken.

He enters and sees that most of the liquor bottles are broken but a number are still intact, including many bottles of expensive wine and cognac.

Doug goes home to get his SUV and drives back to the liquor store. He then enters the store intending to take home as many bottles as he can fit in his car. But the owner of the store surprises him there and calls the police.

Doug may be charged with looting by burglary. He didn't actually succeed in stealing any liquor, but he entered the store with intent to commit theft—which is all that is required for the crime of burglary.

1.2. Looting by grand theft

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You may also be guilty of Penal Code 463 PC looting if you commit the crime of grand theft during a state of emergency or local emergency.13

Committing the crime of grand theft during an emergency is one way to violate California looting law.

The definition of grand theft is stealing property with a value of more than nine hundred fifty ($950) dollars.14

(Stealing any automobile or firearm used to be considered grand theft even if the item was worth less than $950—but the passage of Proposition 47 in 2014 changed that. Now, stealing is only grand theft if the property is worth more than $950 unless the defendant has certain serious priors on his/her record.15)

Example: The neighborhood where Sharon lives erupts in a riot after the local police department fails to discipline an officer who brutally used a Taser on a local teenager for no good reason. The mayor declares a local emergency.

Sharon spots an expensive hybrid car around the corner from a street where rioters are being confronted by police. She decides to take advantage of the confusion to break the car's window, hotwire it and steal it.

Sharon may be charged with looting for committing the crime of grand theft during a state of emergency.

1.3. Looting by petty theft

You also commit the crime of PC 463 looting if you commit a petty theft during a state of emergency or local emergency.16

A petty theft is simply any theft that is not grand theft—in other words, theft where the stolen items are worth nine hundred fifty dollars ($950) or less.17

Looting can occur after a severe flood.

Example: Unseasonal rains lead to severe flooding in the town where Chris and his wife Marlene live. The Governor declares a state of emergency for the county.

Chris and Marlene hear rumors that a local grocery store, which was heavily damaged by the flood, has been broken into—and that people are walking in and taking whatever they want.

Chris and Marlene are retirees on a fixed income. They decide to check out the grocery store for themselves, and they see that the rumors are true.

So they walk inside and take several large bags of food for their dogs, several large packages of toilet paper and laundry detergent, and a few food items—all without paying. The total value of these items is several hundred dollars.

Chris and Marlene are guilty of the “petty theft” version of looting.

2. Penalties for Penal Code 463 Looting

The penalties for looting depend on the form of the crime one is alleged to have committed.

2.1. Looting by burglary penalties

Looting by burglary is what is known as a “wobbler.” This is a California crime that may be charged as either a misdemeanor or a felony, at the prosecutor's discretion18—with the decision usually based on:

Regardless of whether looting by burglary is charged as a misdemeanor or a felony, the defendant is required to serve at least one hundred eighty (180) days in county jail—even if s/he is sentenced to probation.21

The only exception is if the judge decides that the interest of justice would best be served by reducing or eliminating that minimum jail term, based on the defendant's particular circumstances.22

Example: Tina is a single mother living in a small town. After her town is affected by a severe windstorm that damages most buildings, the county board of supervisors declares a local emergency for the area.

Tina has run out of diapers for her baby, and her car is not usable since a tree branch fell on it in the storm. Normally she shops at a nearby convenience store, but the store has been closed since the windstorm.

So Tina breaks a window to enter the convenience store and then steals several boxes of diapers once inside.

The prosecutor charges Tina with looting through burglary as a misdemeanor. She decides to plead guilty because she cannot afford a lawyer. The judge sentences her to probation.

Ordinarily she would be required to serve at least 180 days in jail. But because she is a single mother of young children, and because her criminal behavior was fairly minor, the judge makes a special decision to waive this requirement.

2.2. Looting by grand theft penalties

Looting by grand theft is also a wobbler unless the stolen items included a firearm.23

A judge can waive the mandatory jail sentence for people convicted of looting when the interest of justice demands it.

The potential penalties are almost identical to those described in Section 2.1, above, for grand theft by burglary—including the minimum sentence of 180 days in county jail. The only difference is that grand theft looting penalties may include only up to one hundred sixty (160) hours of community service.24

2.3. Looting by grand theft firearm penalties

If the defendant is accused of California Penal Code 463 looting by grand theft, and the items stolen include a firearm—then the crime will always be charged as a felony.25

Looting by grand theft firearm is punishable by the following:

Felony probation, with a minimum of 180 days served in county jail unless the judge determines that this would not serve the interest of justice;

3. Legal Defenses to California Looting Charges

“In an ideal world, Penal Code 463, California's anti-looting law, would be a tool to protect people's property during natural or man-made disasters. Unfortunately, in reality it is sometimes used by police and prosecutors for much less desirable purposes. In particular, police can discourage or punish people who want to exercise their right to free speech and peaceful protest by threatening to arrest them for looting.”

If you or a loved one is charged with California looting, we can help you fight for justice, possibly with the help of one of the following common legal defenses:

You lacked criminal intent

Many prosecutions for looting are based on allegations that the defendant committed a burglary during an emergency.

But you only commit a burglary if you enter a structure with the intent to commit a theft or felony once inside.30

If a store or office were broken into during an emergency and you were caught inside, you may have been arrested for looting without any hard evidence that you intended to steal anything from the business or commit any other kind of felony. If this is the case, you can fight the charges on the basis of lack of intent.

The police violated search & seizure laws

You can fight looting charges by arguing that police violated your constitutional right to be free of unreasonable searches and seizures.

Looting charges usually arise from arrests made during tense, chaotic situations. During riots or unsettled situations following natural disasters, police are typically nervous, overworked and sometimes just plain angry.

Under these sorts of conditions, police are liable to act irrationally or make mistakes. They may make arrests without either a California arrest warrant or probable cause to believe you were actually committing an offense. Just being present at the scene of a public disturbance that police find inconvenient should not be probable cause for them to arrest you.

The best criminal defense attorneys for these sorts of cases are those who also have experience in civil rights law—and can help make sure that a wrongful arrest does not also lead to a wrongful conviction for Penal Code 463 looting.

You were a victim of mistaken identification

For all the reasons just described, police dealing with emergency situations are prone to make mistakes—including misidentification of the people who were involved in unlawful activity.

Particularly if you were on the scene of a riot or a looting incident, and you happen to be of the same race or ethnicity as many of the people involved, you could easily be accused of engaging in wrongdoing simply because police or eyewitnesses mistook you for someone else.

4. PC 463 Looting and Related Offenses

Rioting is a related offense to Penal Code 463 PC looting.

Common California crimes that are often charged along with—or instead of—Penal Code 463 PC looting include:

4.1. PC 404 & 405 participating in a riot

“Rioting” is a separate crime under California Penal Code 404.31

Rioting is defined as acting together with one or more other people to use force or violence—or credibly threaten to use force or violence—to disturb the public peace.32

If you are identified by police as a “ringleader” of a riot or other disturbance that involves violations of California's looting laws, you may be charged with both rioting and looting.

Rioting is a misdemeanor. It carries a county jail sentence of up to one (1) year, and/or a fine of up to one thousand dollars ($1,000).33

4.2. PC 594 vandalism

The penalties for California vandalism depend on the value of the property that is damaged. Vandalism is a misdemeanor if the value is less than four hundred dollars ($400)—but becomes a wobbler if the damage is worth $400 or more.35

Unlike looting, vandalism does not carry a mandatory jail sentence—and it carries less of a stigma on a criminal record.

So in some cases it may make sense to try to get looting charges reduced to vandalism charges.

4.3. PC 602 criminal trespass

Let's say you entered a commercial property during an emergency but the prosecutors do not have good evidence that you were committing a burglary by doing so, or that you stole anything while inside. In this case—or a similar one—trespass could be a useful plea bargain from Penal Code 463 PC looting charges.

4.4. Unauthorized entry into a closed area; sightseeing at an emergency

California's law against unauthorized entry into a closed emergency area, Penal Code 409.5(c), PC, makes it a crime to enter an area that has been closed by law enforcement because of a disaster such as a flood, earthquake, accident, explosion, etc. You are only guilty of this crime if you enter the area willfully and knowingly AND remain there even after you have been asked to leave.38

Unauthorized entry into a closed area is a misdemeanor under Penal Code 409.5(c) PC.39 It carries less of a stigma and lower penalties than looting and so it may be another helpful plea bargain from looting charges.

Legal References:

Penal Code 463 PC – Looting during an emergency; punishment; probation; definitions; consensual entry. (“(a) Every person who violates Section 459, punishable as a second-degree burglary pursuant to subdivision (b) of Section 461, during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or pursuant to subdivision (h) of Section 1170. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 240 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. For purposes of this section, the fact that the structure entered has been damaged by the earthquake, fire, flood, or other natural or manmade disaster shall not, in and of itself, preclude conviction. (b) Every person who commits the crime of grand theft, as defined in Section 487 or subdivision (a) of Section 487a, except grand theft of a firearm, during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in a county jail for one year or pursuant to subdivision (h) of Section 1170. Every person who commits the crime of grand theft of a firearm, as defined in Section 487, during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or unnatural disaster shall be guilty of the crime of looting, punishable by imprisonment in the state prison, as set forth in subdivision (a) of Section 489. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 180 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 160 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. (c) Every person who commits the crime of petty theft, as defined in Section 488, during and within an affected county in a “state of emergency” or a “local emergency” resulting from an earthquake, fire, flood, riot, or other natural or manmade disaster shall be guilty of a misdemeanor, punishable by imprisonment in a county jail for six months. Any person convicted under this subdivision who is eligible for probation and who is granted probation shall, as a condition thereof, be confined in a county jail for at least 90 days, except that the court may, in the case where the interest of justice would best be served, reduce or eliminate that mandatory minimum jail sentence, if the court specifies on the record and enters into the minutes the circumstances indicating that the interest of justice would best be served by that disposition. In addition to whatever custody is ordered, the court, in its discretion, may require any person granted probation following conviction under this subdivision to serve up to 80 hours of community service in any program deemed appropriate by the court, including any program created to rebuild the community. (d) . . . (4) Consensual entry into a commercial structure with the intent to commit a violation of Section 470, 476, 476a, 484f, or 484g of the Penal Code, shall not be charged as a violation under this section.”) See also Penal Code 459 PC – Burglary [form of looting]. (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.”) See also Penal Code 487 PC – “Grand theft” [form of looting] defined. (“Grand theft is theft committed in any of the following cases: (a) When the money, labor, or real or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b). (b) Notwithstanding subdivision (a), grand theft is committed in any of the following cases: (1)(A) When domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops are taken of a value exceeding two hundred fifty dollars ($250). (B) For the purposes of establishing that the value of domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops under this paragraph exceeds two hundred fifty dollars ($250), that value may be shown by the presentation of credible evidence which establishes that on the day of the theft domestic fowls, avocados, olives, citrus or deciduous fruits, other fruits, vegetables, nuts, artichokes, or other farm crops of the same variety and weight exceeded two hundred fifty dollars ($250) in wholesale value. (2) When fish, shellfish, mollusks, crustaceans, kelp, algae, or other aquacultural products are taken from a commercial or research operation which is producing that product, of a value exceeding two hundred fifty dollars ($250). (3) Where the money, labor, or real or personal property is taken by a servant, agent, or employee from his or her principal or employer and aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive month period. (c) When the property is taken from the person of another. (d) When the property taken is any of the following: (1) An automobile. (2) A firearm.”) See also Penal Code 488 PC – Petty theft [form of looting] defined. (“Theft in other cases is petty theft.”)

Penal Code 463 PC – Looting during emergency; punishment; probation; definitions; consensual entry. (“(d)(1) For purposes of this section, “state of emergency” means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. (2) For purposes of this section, “local emergency” means conditions which, by reason of their magnitude, are, or are likely to be, beyond the control of the services, personnel, equipment, and facilities of any single county, city and county, or city and require the combined forces of a mutual aid region or regions to combat. (3) For purposes of this section, a “state of emergency” shall exist from the time of the proclamation of the condition of the emergency until terminated pursuant to Section 8629 of the Government Code. For purposes of this section only, a “local emergency” shall exist from the time of the proclamation of the condition of the emergency by the local governing body until terminated pursuant to Section 8630 of the Government Code.”)

Same. See also Penal Code 1170(h) PC. (“(h)(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.”)

Same.

Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Government Code 8629 GC – Termination of state of emergency [for purposes of California looting law]; proclamation. (“The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.”)

Government Code 8630 GC – Proclamation by local governing body [for purposes of California looting law]; review; termination. (“(a) A local emergency may be proclaimed only by the governing body of a city, county, or city and county, or by an official designated by ordinance adopted by that governing body. (b) Whenever a local emergency is proclaimed by an official designated by ordinance, the local emergency shall not remain in effect for a period in excess of seven days unless it has been ratified by the governing body. (c) The governing body shall review the need for continuing the local emergency at least once every 30 days until the governing body terminates the local emergency. (d) The governing body shall proclaim the termination of the local emergency at the earliest possible date that conditions warrant.”)

Penal Code 459 PC – Burglary [form of looting], endnote 1, above. See also Penal Code 460 PC – Degrees; construction of section. (“(a) Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. (b) All other kinds of burglary are of the second degree.”)

Penal Code 487 PC – “Grand theft” [form of looting] defined, endnote 1, above. See also Penal Code 490.2 PC – Petty theft; punishment of certain repeat offenders. (“(a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.”)

Same. See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment. (“Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed [such as Penal Code 463 looting], the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies in addition to the imprisonment prescribed.”)

Same. See also Penal Code 489 PC – Grand theft; punishment. (“Grand theft is punishable as follows: (a) If the grand theft involves the theft of a firearm [or if grand theft looting involves the theft of a firearm], by imprisonment in the state prison for 16 months, or two or three years. . . .”) See also Penal Code 672 PC – Offenses for which no fine prescribed; fine authorized in addition to imprisonment, endnote 19, above.

Penal Code 404 PC – Riot; elements [may be charged along with looting]. (“(a) Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.”)

Same.

Penal Code 405 PC – Riots; punishment [may be in addition to punishment for looting]. (“Every person who participates in any riot is punishable by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment.”)

Penal Code 594 PC – Vandalism [may be charged instead of California looting]. (“(a) Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) Defaces with graffiti or other inscribed material. (2) Damages. (3) Destroys.”)

See same – Vandalism [may be charged along with or instead of looting]. (“(b)(1) If the amount of defacement, damage, or destruction is four hundred dollars ($400) or more, vandalism is punishable by imprisonment pursuant to subdivision (h) of Section 1170 or in a county jail not exceeding one year, or by a fine of not more than ten thousand dollars ($10,000), or if the amount of defacement, damage, or destruction is ten thousand dollars ($10,000) or more, by a fine of not more than fifty thousand dollars ($50,000), or by both that fine and imprisonment. (2) (A) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), vandalism is punishable by imprisonment in a county jail not exceeding one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. (B) If the amount of defacement, damage, or destruction is less than four hundred dollars ($400), and the defendant has been previously convicted of vandalism or affixing graffiti or other inscribed material under Section 594, 594.3, 594.4, 640.5, 640.6, or 640.7, vandalism is punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than five thousand dollars ($5,000), or by both that fine and imprisonment.")

Penal Code 602 PC – Criminal trespass [possible plea bargain from looting]. ("Except as provided in paragraph (2) of subdivision (v), subdivision (x), and Section 602.8, every person who willfully commits a trespass by any of the following acts is guilty of a misdemeanor: . . . (k) Entering any lands, whether unenclosed or enclosed by fence, for the purpose of injuring any property or property rights or with the intention of interfering with, obstructing, or injuring any lawful business or occupation carried on by the owner of the land, the owner's agent or by the person in lawful possession.”)

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